What's in a Trademark?
At Promo Marketing, we have a "do not print" list. I keep it hanging in my cube, just beyond my computer and always in my field of vision. On the list you'll find things like Kleenex, Star Wars, Disney, The White House and McDonalds.
Every company that appears on that list is there for the same reason: they rabidly control and protect their trademarks, and are not afraid to use legal force to do so. Even if it's just an example of imprint capabilities, we will not publish an image of an item featuring one of those logos.
Trademark suits have been appearing in the news frequently these days. In January we ran two stories about people busted for counterfeit apparel, and this week there's an uproar about China denying Apple the rights to the name "iPad" in that country. As a result, a Hong Kong company is suing the Cupertino giant for $1.6 billion for infringing on the registered name.
The legal issues aren't relegated to retail giants. In fact, for our industry, the threats are even more acute. I read an article this week about screen printers creating unauthorized apparel for the Oklahoma City Thunder. The printers in the article, who are just your average sports fans, embellish and sell the T-shirts like the kind you see at stands outside of stadiums or on the streets in major cities.
You and I know that those shirts and jerseys, if they feature a team logo, colors or player names, are illegal. But most buyers don't, and that's where you need to be cautious.
If you've been following Headlines the past few months, you've probably read about the lawsuit between Obama's re-election campaign and distributor Washington Promotions & Printing. In brief, Obama for America filed a suit against the distributor for trademark infringement on the Obama "O" used heavily in the 2008 campaign. Last week, the case was dismissed in Chicago's District Court, although the option was left open to re-file the complaint in another district.
Something the owner of Washington Promotions & Printing said to Bloomberg Businessweek always stood out to me. The day after the lawsuit was filed, he said, "I thought presidential campaigns were like the Grateful Dead, who never enforced their IP rights, but encouraged people to record their music and print their logos."
My jaw dropped. I would expect an end-user, and even an end-buyer, to not know the severity of trademark infringement. The rest of us cannot afford to be so cavalier. Fortunately, most of us aren't. As one PromoMarketing.com commenter said, "Ignorance is no legal excuse." No matter how the Obama for America vs. Demstore.com case plays out in the future, it's important to know how to protect your business and your clients.
Is it legal to use the same colors as a sports team, but in a different pattern? What about the same pattern with inverse colors? Can you reprint a popular slogan like "Just Do It" on an unrelated product? The ins and outs of intellectual property law go beyond my intellectual capacity, but it's important to know how to respond to these questions. Your clients may ask them, or they may come to you with a job that involves an imprint dangerously close to a registered trademark, and you need to know what to do.
How can you protect yourself? Lawyer up. Find an attorney in your area who specializes in intellectual property law and don't be afraid to consult them when it comes to questionable jobs. The fee they'll charge you for a phone call is much less than the fee they'll charge to defend you in court, plus damages you could be forced to pay if your client is caught using a trademarked logo (and if your client is caught, you can safely assume you are as well).
Another good place to look is the U.S. Patent and Trademark Office, which includes a "Trademark Basics" site and tools to locate current and pending trademarks. For more quick tips, check out this blog I wrote in October, "Trademark Infringement: 8 Ways to Protect Your Business."
Professionals in the promotional industry are smack in the middle of the legal minefield that is trademark regulation. It's a scary place to be. But as with anything else, forewarned is forearmed. Keep abreast of intellectual property laws, do your due diligence with your clients, trust your instincts, and you and your business will safely make it out the other side.